High Court rejects government request to delay hearing on ‘reasonableness’ law
Court cites time constraints as reason for refusing to postpone; opposition says request was designed to push court president Hayut out of case
The High Court of Justice on Tuesday rejected a government request to delay a hearing on the legality of the “reasonableness” law passed last month, citing the large panel and time constraints that the court must take into account.
The request, submitted last week by the government’s counsel Ilan Bombach, asked that the hearing be postponed by three weeks so that the respondents could prepare adequately.
Bombach is representing the government privately on the matter due to Attorney General Gali Baharav-Miara’s opposition to the “reasonableness” law.
With the exception of the attorney general, all respondents were, however, given a three-day extension to submit their responses to the position, with the due date now being September 6. The court also accepted Bombach’s request to move the September 12 hearing up to 8:30 a.m. in consideration of his son’s wedding, which will take place that evening.
Religious Zionism MK Simcha Rothman, chair of the Knesset’s Consitution, Law and Justice Committee and a key architect of the judicial overhaul, said the court’s refusal to grant an extension was another example of why its powers need to be curbed.
“The High Court has no limits,” he tweeted. “I wanted with all my heart to believe the High Court is not deliberately striving to create a constitutional crisis as part of its war to preserve its excessive power, and at the cost of dragging the State of Israel into dysfunction.”
“The reality proves that was a completely naive thought,” he wrote, adding: “In a democracy, it is forbidden that a branch of government has no limits.”
For the court, the timing is crucial, as Court President Esther Hayut and Justice Anat Baron are set to retire in mid-October (though they can still issue rulings in ongoing cases for a few months more). With the issue of appointing new judges at the heart of the government’s overhaul efforts and Justice Minister Yariv Levin refusing to convene the nation’s Judicial Selection Committee in its present form, there are currently no prospects of replacements being named for them.
Facing the very real prospect of a constitutional crisis as the judicial and executive branches question the very rules of the game by which they operate, the judges are determined to rebuff delays that could leave the matter unresolved when Hayut, who has publicly come out against the judicial overhaul, departs.
In the opposition, legislators have accused the government of seeking a delay precisely for that purpose.
In requesting the delay, Bombach cited the need for extensive preparations for such a crucial case.
“The petitions involve historical, jurisprudential, and doctrinal issues on a massive scale, and they likely lack precedent in the history of the High Court of Justice and other authorities. It’s doubtful that they have precedent in the entire Western world,” Bombach’s request said. “The implications of the process’s outcomes are of monumental significance and far-reaching.
“The breadth of the subject matter, as well as the depth of the issues and their implications, require sufficient time to formulate a response,” the request continued. “No public interest will be hurt by delaying the current deadlines for response. Not delaying the hearing will critically damage the respondents’ ability to respond in such a dramatic and unprecedented issue.”
Baharav-Miara’s decision to allow the government outside counsel followed disagreements between her and the government over the law, passed by the Knesset on July 24 despite intense opposition and months of popular protests. She is expected to recommend that the court strike down the legislation, which one of her deputies last month called “extreme” and warned may cause “very severe harm” and “multi-system damage.”
The attorney general has frequently been at loggerheads with the government, some of whose members have called for her to be fired. She has expressed opposition to other legislation before the High Court of Justice, including asking the judges to strike down a law barring the court from potentially ordering Prime Minister Benjamin Netanyahu to recuse himself amid his ongoing criminal trial.
The reasonableness legislation, an amendment to Basic Law: The Judiciary, prohibits all courts, including the Supreme Court, from using the judicial yardstick of “reasonableness” to review and potentially reverse government and ministerial decisions. It was the first major law passed in the government’s far-reaching judicial overhaul plans.
The court is set to review the highly contentious legislation with a full bench of all 15 justices for the first time in its history. The court has never struck down a Basic Law.
The coalition argued that the amendment was critical to restrain what it sees as an overly activist court interfering in government decisions, while opponents argued the reasonableness standard is a key tool for protecting certain rights and the independence of law enforcement officials.
Last week, the High Court issued a procedural injunction requiring the government to explain why it believes the petitions against the law should be struck down by the court. The court stressed the move was for “purposes of efficiency alone” and did not reflect its position.
Nullifying the quasi-constitutional Basic Law would be an unprecedented exercise of judicial review over the Knesset’s constituent authority. Prime Minister Benjamin Netanyahu has refused to say whether his government would abide by such a ruling.
